The government’s power to snoop

January 30, 2013 12:53 pm

Ever sent an embarrassing email? Read this editorial if you use Gmail. Or if you have a Dropbox account. Or if you back up any of your files to Google Drive, Apple’s iCloud or any other remote drive that you can’t hold in your hand.

Though some argue that the Fourth Amendment overrides it, a federal statute allows law enforcement agents to view material on these and many other common electronic storage services without a warrant, as long as that material is at least 180 days old.

The paper credit card applications and car insurance solicitations that clog your mailbox enjoy stiff privacy protections. Highly sensitive emails do not. Google just reported that it received 8,438 government requests for user data in the last half of 2012; the law’s flimsy privacy protections should not comfort anyone.

The story of the Electronic Communications Privacy Act is an archetypal example of technological reality vastly outpacing Washington’s ability to adapt. When Congress wrote the law in 1986, its provisions made some sense. Few Americans used email at all, and the email services that existed stored messages for only as long as it took users to download and read them — not in perpetuity, as many do now.

Sen. Patrick J. Leahy, D-Vt., ECPA’s author, has made updating the law such a priority that he remained chairman of the Judiciary Committee this year rather than attempt to take the Appropriations Committee’s gavel. Last November, he managed to pass out of his committee an ECPA amendment that would have removed the 180-day rule, requiring law enforcement agents to obtain search warrants based on probable cause before reading through electronic communications. But lawmakers failed to advance the measure before Congress adjourned this month, so Leahy must now start over.

It’s strange enough that ECPA has survived unamended for this long; it would be senseless for it to persist any longer.